Request By:
Mr. Michael McIntyre,
Executive Director
Lexington-Fayette Urban County Human Rights Commission
162 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of March 20, 1989, Mr. Richard C. Stephenson, Esq., has appealed what he indicated was the failure of the Lexington-Fayette Urban County Human Rights Commission to respond to a request, under Open Records provisions, to inspect certain of its records.
FINDINGS IN BRIEF
Where the Lexington-Fayette Urban County Human rights Commission indicated it would supply copies of certain records, but failed to do so, it effectively denied inspection of records, and thus failed to act consistent with provisions of KRS 61.870 to 61.884.
FACTUAL BACKGROUND
By letter of February 2, 1989, Mr. Richard C. Stephenson, on behalf of Trane Company, asked to be provided copies of the entire investigative files of the Lexington-Fayette Urban County Human rights Commission related to the charge of Martha Hill Routt v. The Trane Company, HRC NO. 03-87-107, EEOC No. 241-87-0511.
A copy of a February 10, 1989 Lexington-Fayette Urban County Human Rights Commission letter accompanying the request to this office, to review alleged lack of agency response to the request, indicates the agency said, in substance, that information sought by the request (February 2, 1989) would be provided in accordance with KRS 61.870-61.884 and US EEOC directives.
A copy of a February 14, 1989 letter of Mr. Stephenson indicates, in part and in substance, that the records were not furnished.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General.
In the instant situation, the Lexington-Fayette Urban County Human Rights Commission responded to the request dated February 2, 1989, by a letter dated February 10, 1989. According to Mr. Stephenson, although the Commission indicated records would be provided in keeping with the request, none have been. While an agency is not required to provide copies of records that have not been inspected, here the agency indicated it would provide them, but apparently has not done so. The effect is to deny inspection. Accordingly, the agency did not act consistent with the provisions of KRS 61.870 to 61.874.
The Lexington-Fayette Urban County Human Rights Commission should promptly advise Mr. Stephenson, in writing, when the records in question may be inspected. If any records are withheld from inspection, such withholding must be explained in a manner substantially consistent with KRS 61.880(1). There must be a specification of records withheld, together with a citation of the specific exception, from among those in KRS 61.878, relied upon in denying inspection. There must also be a brief explanation of how an exception relied upon relates to particular records withheld. A copy of any denial should be forwarded to the Attorney General's Office.
As an alternative to requiring inspection, the Commission may, as an accommodation to the requestor, copy them and send them to the requestor, or notify the requestor that they are ready for pick-up. Mr. Stephenson indicated copying costs would be paid.
Your agency may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Richard C. Stephenson, Esq.